Daniel McConville

The applicant sought an order for partition and sale of a residential property of which he was a registered co-owner as tenant in common, and distribution of proceeds.

The respondents, his siblings, brought a counter application asserting resulting trust, constructive trust, and an unwritten collective ownership agreement based on familial and cultural norms.

The court found the siblings' counterclaim statute-barred under the Real Property Limitations Act, as they knew of the dispute more than ten years before commencing their application.

On the merits, the court held that the siblings failed to establish a purchase money resulting trust, constructive trust based on unjust enrichment, or an enforceable unwritten agreement barred by the Statute of Frauds.

The applicant's partition and sale application was granted; he was awarded 50% of the net proceeds and costs of $35,000, with a 75-day delay before listing to allow the occupying siblings time to vacate.

The Court of Appeal for Ontario dismissed the appeal by 2724582 Ontario Inc. and related parties, upholding the motion judge’s decision that a release signed by Rhonda Gold was void and unenforceable.

The court found that the process used to determine the enforceability of the release was appropriate, as both parties had agreed to it.

The release was found void in part because it contained an illegal provision barring regulatory complaints.

The court also rejected arguments that the motion judge’s findings about the mortgage scheme would cause inconsistent results at trial, and found no error in the judge’s treatment of the evidence.

Costs were awarded to the respondent.

The plaintiff brought motions for approval of a settlement agreement, a discretionary fund, class counsel fees, and a notice program in a class action concerning allegedly defective metal-on-metal hip implants.

The court approved the claims-made settlement and the $750,000 discretionary fund, finding them fair, reasonable, and in the best interests of the class given the significant litigation risks.

The court also approved a 25% contingency fee for class counsel and a $1.25 million contribution from the defendants towards fees and disbursements.

However, the court dismissed the representative plaintiff's request for a $7,500 honorarium, finding no exceptional circumstances of personal hardship.

The plaintiff, Brookfield Residential (Ontario) Limited, sought leave to register a Certificate of Pending Litigation (CPL) against a property owned by the defendant, Chang Jiu Chen, and subsequently transferred to his spouse, Chun Yan Zheng.

Brookfield had previously obtained a summary judgment against Chen for breach of contract.

The transfer of the property occurred for a nominal sum after cross-examinations and prior to the summary judgment motion, without Brookfield's knowledge.

The court found that numerous "badges of fraud" were present, establishing a prima facie case of fraudulent conveyance under the Fraudulent Conveyances Act.

The defendants' explanation for the transfer was not compelling.

The motion for leave to register the CPL was granted.

The plaintiff moved to certify a class action against the estate of an orthodontist for surreptitiously video recording patients and sought approval of a settlement.

The court granted certification for settlement purposes and approved the settlement, finding it fair, reasonable, and in the best interests of the class, given the limited assets of the estate and the challenges of individual proof of damages.

The settlement provided $425,000, including $350,000 for class members, an administration fund, and partial indemnity costs.

The plaintiff, J.A.L. Developments Inc., brought a motion for leave to conduct further discovery after the action had been set down for trial, pursuant to Rule 48.04 of the Rules of Civil Procedure.

The case involved a profit-sharing agreement for a real estate project where the plaintiff invested $200,000 and alleged fraudulent conveyances and significant discrepancies in accounting, showing a swing from anticipated profits to stated losses.

The court reviewed the evolving test for granting leave under Rule 48.04(1), preferring a flexible "interests of justice" approach over the more rigid "substantial or unexpected change in circumstances" test, especially in light of the COVID-19 pandemic's impact on court operations.

The court granted leave for both parties to conduct further discovery, emphasizing the importance of full pre-trial disclosure for a just, expeditious, and least expensive resolution on the merits.

The plaintiff vendor moved for summary judgment for damages arising from a failed real estate transaction.

The defendant purchaser failed to close on the agreed date and requested an extension, which the vendor refused after counter-offers were not accepted.

The purchaser argued the vendor failed to mitigate by not granting the extension.

The court rejected this argument, applying appellate authority that a vendor is not obliged to mitigate by reselling to the defaulting purchaser.

Summary judgment was granted to the plaintiff for damages, with the deposit forfeited and applied to the damages, and pre-judgment interest awarded at the contractual rate of 12%.

The defendant breached an Agreement of Purchase and Sale for a residential home.

The plaintiff vendor brought a motion for summary judgment seeking damages for the difference between the contract price and the market value at closing, plus forfeiture of the deposit.

The defendant argued the plaintiff failed to mitigate its damages and that the deposit should be credited against any damages.

The court granted summary judgment, finding no failure to mitigate as the defendant provided no evidence that the loss could have been minimized.

The court also held that the deposit must be credited against the damages, awarding the plaintiff the diminished value less the deposit amount.

Following a motion where the plaintiff was unsuccessful in obtaining a Mareva injunction but successful in obtaining an order for interim possession of a jewellery set, both parties sought costs.

The court found that success was substantially divided and the costs sought by the plaintiff were excessive.

Applying the factors in Rule 57.01, the court ordered that the parties bear their own costs.

The plaintiff sought a worldwide Mareva injunction to freeze assets and, alternatively, an order for interim possession of a jewellery set of identified diamonds.

The court denied the Mareva injunction, finding the plaintiff did not establish a strong prima facie case of fraud against all respondents or a real risk of asset dissipation.

However, the court granted the interim possession order, finding the criteria under Rule 44.01 were met, as the plaintiff demonstrated lawful entitlement to the property and unlawful detention by the respondents.

The jewellery set was ordered to be held by the Toronto Police Service pending criminal matters.

The plaintiffs, as judgment creditors, previously obtained a civil contempt order against the defendant judgment debtor for concealing income and moving assets to defeat his creditors.

The penalty phase was adjourned to allow the defendant to purge his contempt by paying $112,623.

The defendant paid the amount in full, albeit past the deadline.

The court determined the appropriate sentence for the contempt, weighing mitigating factors (purging the contempt, no prior record, apology) against aggravating factors (intentional and long-running misconduct).

The court ordered the defendant to complete 75 hours of volunteer community service over six months.

The defendant real estate brokerage brought a motion for an interlocutory injunction requiring the plaintiff to vacate a jointly operated branch office, or alternatively, preventing the plaintiff from posting notices at the premises.

The parties were engaged in an acrimonious dispute over a joint venture agreement.

The court refused to grant the mandatory injunction requiring the plaintiff to vacate, finding the defendant failed to establish a strong prima facie case.

However, the court granted a limited injunction preventing the plaintiff from papering the front window with copies of a previous court order, as this conduct risked damaging the defendant's reputation and causing a default under the lease.

The Milborne defendants sought leave to file a Fresh as Amended Statement of Defence.

The plaintiffs opposed a specific sentence in the proposed pleading, which alleged that plaintiff Charles Moon used "sham/shell corporations" to hide personal involvement and remain judgment proof in other business activities.

The court, applying principles for pleading similar facts, found the impugned allegation too vague and broad, leading to disproportionate complexity and an unwarranted "fishing expedition" into Moon's past business dealings.

Leave to amend was granted, but with the exclusion of the problematic sentence.

The appellants wrongfully repudiated an agreement of purchase and sale for a residential property in Burlington.

The vendor resold the property approximately two months after relisting it through the same agent.

The motion judge granted summary judgment ordering the appellants to pay the difference in purchase price and related expenses, finding the vendor acted reasonably in mitigating damages.

The appellants appealed, arguing the resale steps were unreasonable and challenging the price differential.

The Court of Appeal dismissed the appeal, finding no evidentiary basis to interfere with the motion judge's decision.

The appellants acknowledged they added the broker and agent as parties solely to obtain disclosure of their file and market data, providing no legitimate basis to maintain the action against them.

The defendants sought leave to appeal an order granting certification of a class action regarding allegedly defective hip implants.

The defendants argued that the motion judge's approach to evidence on commonality conflicted with other decisions and that there was good reason to doubt the correctness of the certification order.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's application of the 'some basis in fact' standard for certification.

Following reasons staying an application under s. 7(1) of the Arbitration Act, 1991 and referring the dispute to arbitration, the successful parties sought partial indemnity costs of over $169,000.

The opposing parties argued that most pre‑hearing work related to issues that would ultimately be determined in arbitration and requested that costs be limited to $7,500.

The court rejected those submissions, holding that parties who refuse to narrow the scope of a hearing cannot later complain about the extent of pre‑hearing work undertaken.

Applying Rule 57, proportionality, and appellate guidance on fixing reasonable costs, the court reduced certain unexplained factum‑drafting time but otherwise accepted the bill of costs.

Costs of $155,292.66 inclusive of disbursements and HST were awarded.

Majority shareholders sought a stay of an oppression application brought by minority shareholders and related parties, relying on a broad arbitration clause in a shareholders’ agreement.

The court applied the competence‑competence principle under the Arbitration Act, 1991 and held that where it is arguable a dispute falls within the arbitration clause, the matter should be referred to arbitration for determination of jurisdiction.

Most claims, including oppression allegations, employment termination disputes, and share purchase issues, were closely connected to the shareholders’ agreement and therefore subject to arbitration.

Claims against non‑signatories and ancillary allegations were also stayed under the Courts of Justice Act as they depended on the core disputes.

The only exception permitted to proceed in court was a wrongful dismissal action by an employee who was not a party to the shareholders’ agreement.

The respondents purchased property formerly used as a municipal dump and sued the appellant municipality for negligence after discovering contamination.

The trial judge awarded damages for additional construction costs and stigma.

The Court of Appeal allowed the municipality's appeal, finding that the causal link was broken when the respondents rejected an offer to reverse the sale and chose to proceed with construction despite knowing the site was contaminated and would require significant remediation.

The appellant home builder appealed a Small Claims Court decision awarding the respondent purchasers $2,147.64 for disputed closing costs.

The dispute centered on the interpretation of a schedule in the Agreement of Purchase and Sale regarding whether closing costs were capped and included in the purchase price or payable as an extra.

The Divisional Court dismissed the appeal, finding no procedural unfairness in the trial judge's admission of parol evidence regarding misrepresentations by the builder's agents, as the issue was sufficiently raised in the pleadings.

The court also held that the agreement contained an ambiguity, justifying the trial judge's reliance on extrinsic evidence of the negotiating history to interpret the contract in favour of the purchasers.